A waiver of contract occurs when a party to a contract waives or gives up one or more rights or benefits it has under the terms of the contract.

A party generally does not waive its rights unless the waiver is made voluntarily and with knowledge of the rights being waived—known as a “knowing and voluntary relinquishment of rights.”

Contracts often include a non-waiver paragraph or provision stating that a party’s (or the parties’) failure to pursue or exercise certain rights under the contract does not constitute a waiver of those or other rights under the contract. Such non-waiver provisions are common in insurance contracts and other commercial contracts.

In New Mexico, a waiver of contract rights must be made knowingly and voluntarily, which means the party waiving the rights must do so with full awareness and intention to relinquish specific rights or benefits. This principle is consistent with general contract law principles that require a clear and unequivocal intent to waive contractual rights. Non-waiver clauses are frequently included in contracts to clarify that the failure to enforce a right or provision does not imply that a party has waived their right to do so in the future. These clauses help prevent any misunderstanding or implied waiver of rights due to inaction or forbearance. In the context of insurance and commercial contracts, such provisions are particularly common to ensure that parties retain their rights unless expressly waived. It's important to note that the specific enforceability and interpretation of waiver and non-waiver provisions can depend on the exact language of the contract and the circumstances under which the waiver is claimed to have occurred.